Hartmann v. Black & Decker Mfg. Co.

• Decision Date: 06 September 1988
• Docket Number: 5983,Nos. 5300,s. 5300
• Citation: 16 Conn.App. 1,547 A.2d 38
• Parties: , Prod.Liab.Rep. (CCH) P 11,921 Stanley HARTMANN v. BLACK & DECKER MANUFACTURING COMPANY et al.
• Court: Connecticut Court of Appeals

Page 38

547 A.2d 38

16 Conn.App. 1, Prod.Liab.Rep. (CCH) P 11,921

Stanley HARTMANN v. BLACK & DECKER MANUFACTURING COMPANY et al.

Nos. 5300, 5983.

Appellate Court of Connecticut.

Argued April 12, 1988.

Decided Sept. 6, 1988.

William F. Gallagher, New Haven, with whom, on the brief, were Carl E. Cella North Haven, and Evelyn A. Barnum, New Haven, for appellant (defendant J & S Hydraulics, Inc.).

David N. Rosen, New Haven, for appellee-appellant (plaintiff).

Jeremy G. Zimmermann, with whom, on the brief, was Brian J. Casey, New Haven, for appellee (named defendant).

Before DUPONT, C.J., and DALY and EDWARD Y. O'CONNELL, JJ.

DUPONT, Chief Judge.

The plaintiff brought this action seeking damages for injuries he suffered while operating a radial arm saw manufactured by the defendant Black & Decker Manufacturing Company (Black & Decker) and owned by the defendant J & S Hydraulics, Inc. (J & S), the plaintiff's employer. The trial court rendered judgment in favor of Black & Decker and in favor of the plaintiff against J & S, in accordance with the jury's verdict. J & S appeals from the judgment rendered for the plaintiff and the plaintiff appeals from the judgment for Black & Decker.

The jury could reasonably have found the following facts. The plaintiff, a mechanical engineer, was employed as a draftsman and designer of hydraulic equipment by J & S, a corporation which designed, repaired and manufactured hydraulic equipment. J & S maintained on its premises numerous machines used in the course of its business, including a radial arm saw manufactured by Black & Decker. On January 24, 1979, the plaintiff, after regular working hours, was operating the radial arm saw for the construction of a workbench, a personal project of the plaintiff. Such after-hours personal use of machinery was permitted by J & S, was frequently exercised by its employees, and was regarded as a fringe benefit of employment. Earlier on that date, the plaintiff had obtained specific permission, as was required, to use a company vehicle to drive to a nearby lumber yard and purchase lumber for the construction of the workbench. At the end of the workday, the plaintiff, with the aid of several other employees, carried the lumber from the truck into the shop and onto the mezzanine on which the saw was located.

The plaintiff testified that management was aware of his use of the saw due to his earlier use of the company vehicle and his transport of the wood into the shop in plain view. The plaintiff did not, however, obtain explicit permission to use the saw. While the plaintiff was operating the saw it "kicked back" and pulled his left hand into the blade of the saw, severing his fingers and thumb. The saw as manufactured was equipped with a removable anti-kickback device which was not in place at the time the plaintiff was operating the saw. Following the accident, an anti-kickback device was placed on the saw by J & S.

The plaintiff instituted this action in two counts. In the first count of his amended complaint, the plaintiff alleged that Black & Decker was strictly liable for the injuries he suffered in that it designed, manufactured, distributed and sold the saw in a defective condition unreasonably dangerous to the plaintiff. The plaintiff alleged that the saw was defective because the anti-kickback device was easily removable, and because there were inadequate warnings and instructions relating to the use of the anti-kickback device. Black & Decker denied that the saw was defective and raised three special defenses: that the plaintiff improperly operated the saw; that the plaintiff assumed the risk of operating the saw in the condition in which it was maintained; and that the saw had been altered by a third party without the consent of Black & Decker, and that such alteration could not have been reasonably anticipated by Black & Decker. The plaintiff alleged in the second count of his amended complaint that J & S was negligent in removing the anti-kickback device and in failing to install additional safety devices, ¹ in failing to provide any safety warnings or instructions, save one warning on the saw itself, on the safe operation of the saw, and in failing to maintain the saw in a safe condition. J & S denied being negligent and, by way of a special defense, alleged that the plaintiff's injuries were the result of his negligent operation of the saw.

The jury found, in response to interrogatories, that the saw was not defective in either of the ways alleged by the plaintiff in the first count of his complaint, and, accordingly, returned a verdict for Black & Decker. The jury returned a verdict in favor of the plaintiff against J & S on the second count of the complaint, and awarded the plaintiff damages in the amount of $630,000. The jury found, however, that the plaintiff was 30 percent contributorily negligent and, accordingly, reduced the damage award to $441,000. The trial court denied J & S's motion to set aside the verdict and to render judgment in accordance with its earlier motion for a directed verdict. The court also denied the plaintiff's motion to set aside the verdict in favor of Black & Decker.

In its appeal from the judgment rendered for the plaintiff, J & S claims that the trial court erred (1) in its charge to the jury regarding the duty owed the plaintiff by J & S, (2) in failing to instruct the jury as requested regarding the open and obvious nature of the condition of the saw, and (3) in refusing to set aside the verdict and direct judgment for J & S on the basis that there was insufficient evidence on the issue of liability. The plaintiff, in his appeal from the judgment for Black & Decker, claims that the trial court erred in prohibiting the plaintiff's cross-examination of Black & Decker's expert witness as to whether his opinion on the efficacy of placing warnings directly on the saw was the same during an earlier time period as that expressed at the time of trial, and in prohibiting the introduction of evidence regarding safety measures taken subsequent to the manufacture of the saw in question by manufacturers other than Black & Decker. Black & Decker has presented three alternate grounds upon which the judgment in its favor should be affirmed.

I APPEAL OF J & S HYDRAULICS

J & S first claims that the trial court erred in instructing the jury that J & S owed the plaintiff a duty of reasonable care. ² J & S argues that the permissive use of the radial arm saw by the plaintiff constituted a gratuitous bailment, and cites Johnson v. Bullard Co., 95 Conn. 251, 111 A. 70 (1920), for the proposition that a gratuitous bailor is only liable for injuries occurring as a result of defects in the bailed property of which it was actually aware and which it either deliberately or by gross negligence did not disclose to the bailee. The plaintiff argues, however, that the use of the saw constituted a mutual benefit bailment requiring a duty of reasonable care by the bailor and, therefore, that the trial court's instructions were not erroneous. The plaintiff argues in the alternative that if a gratuitous bailment relationship were created, the gross negligence standard articulated in Johnson v. Bullard Co., supra, is outdated and that the trend of modern authority is to require a duty of reasonable care on the part of a gratuitous bailor.

"A bailment is a consensual relation and it includes, in its broadest sense, any delivery of personal property in trust for a lawful purpose." Pinto v. Bridgeport Mack Trucks, Inc., 38 Conn.Sup. 639, 641, 458 A.2d 696 (1983). "The essential element of bailment is the express or implied assumption of control over the property by the bailee." Lissie v. Southern New England Telephone Co., 33 Conn.Sup. 540, 543, 359 A.2d 187 (1976); see also Malone v. Santora, 135 Conn. 286, 289, 64 A.2d 51 (1949); On Site Energy Corporation v. Sperry Rand Corporation, 5 Conn.App. 326, 331, 498 A.2d 121, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985); Desmond v. Wall, 39 Conn.Sup. 503, 504, 466 A.2d 803 (1983). In Zeterstrom v. Thomas, 92 Conn. 702, 704, 104 A. 237 (1918), the court defined a bailment as "a delivery of goods in trust upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered."

"The duties and liabilities of bailor and bailee are generally determined according to the character of the bailment as one for mutual benefit, or gratuitous...." D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 84, p. 181. Accordingly, bailments are now generally classified as (1) those for the sole benefit of the bailor, (2) those for the sole benefit of the bailee, and (3) those for the mutual benefit of both parties. ³ Id.

A bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. 8 Am.Jur.2d, Bailments § 26. Classification of a bailment as one for mutual benefit, however, does not require that actual money or other consideration pass between the parties, nor does it require the demonstration of a specific, tangible benefit or compensation. Id.; American Enka Co. v. Wicaco Mach. Corporation, 686 F.2d 1050, 1053 (3d Cir.1972). A mutual benefit bailment may be premised on the expectation of benefits expected to accrue as a result of the bailment. Roy v. Friedman Equipment Co., 147 Conn. 121, 122-23, 157 A.2d 599 (1960); Global Tank Trailer Sales v. Textilana-Nease, Inc., 496 P.2d 1292, 1294-95 (Kan.1972). Thus, where the bailment or loan of an article is motivated by the bailor's desire to promote a sale of the article to the bailee, a mutual benefit bailment is created although no money or compensation has passed. Roy v. Friedman Equipment Co., supra, 147 Conn. at 123, 157 A.2d 599; Tierstein v. Licht, 174 Cal.App.2d 835, 842, 345 P.2d 341 (1959). Similarly, if the custody or use of a bailed article is...